PHOENIX (Legal Newsline) – Eleventh-hour concerns by lawyers leading litigation against 3M shouldn’t derail its effort to find out how they found their clients, the company is arguing.
3M has asked a federal judge to force a website called Top Class Actions, on which contact forms put readers in touch with a service to connect with plaintiffs lawyers, to turn over information on individuals who reached out regarding earplug litigation.
3M is accused of supplying the U.S. military with faulty earplugs that led to hearing loss. It filed a motion in Arizona federal court to force Top Class Actions to comply with its record request.
When the issue was briefed, an Aug. 13 hearing was delayed. 3M says it was told opposing counsel was ill and it was postponed
Now, Top Class Actions is asking that the dispute be sent to the earplug multidistrict litigation, where cases are consolidated and led by the plaintiffs firms Aylstock Witkin; Clark, Love & Hudson; and Seeger Weiss.
“(T)his case does not meet the criteria to be included in MDL 2885, and is an improper attempt to further delay this Court’s decision on the merits at the final hour,” 3M’s lawyers wrote.
“Second, Plaintiffs’ leadership counsel had ample opportunity to move to intervene in this case, but failed to do so. Plaintiffs’ leadership improperly tagged this case for inclusion in the MDL.”
3M has asked an Arizona federal judge to order Top Class Actions to comply with its demands for more information. TCA says its communications with possible plaintiffs are protected by attorney-client privilege, despite the fact that it is not actually a law firm.
“TCA asserts that communications submitted by potential claimants through its website are entitled to protection of the attorney-client privilege because TCA is an agent of plaintiffs’ lawyers. Not so,” 3M’s lawyers wrote in the supposed final brief.
“To qualify as an agent for privilege purposes, the agent must ‘assist the attorney in providing legal advice.’ Indeed, TCA’s own website plainly states that it is not engaged in assisting the attorney in providing legal advice, and TCA makes clear in its response to 3M’s motion that it does not assist in providing legal advice.”
TCA’s site contains attorney advertising and articles written by TCA writers. Some pages have contact forms for potential clients whose information is passed on to firms that bought the ads.
“The web pages are replete with information explaining that the form content will be sent to a lawyer, confidentially, so that the potential plaintiff’s claim can be evaluated by a lawyer,” TCA’s July 9 response to 3M’s motion says.
The terms say “it is intended that the information will be protected by attorney-client privilege, but it is possible that Top Class Actions or such attorneys may be ordered by a court of law to produce such information in certain legal situations.”
TCA says attorney-client privilege applies to the records sought by 3M – that potential plaintiffs had a strong expectation their communications would be privileged.
3M’s original subpoena sought:
-Documents related to submissions to TCA’s website;
-Documents relating to the advertising directed to prospective plaintiffs;
-Communications between plaintiffs firms and TCA relating to prospective plaintiffs;
-Documents relating to the referral of prospective plaintiffs; and
-Documents regarding any financial interest or ownership any plaintiffs law firm has in TCA.